Giurina v Sheriff

1 What are the appropriate orders as to costs to be made in these proceedings?

2 Should the Court make gross sum costs orders sought by the Sheriff in these proceedings and in proceedings relating to execution of warrants in relation to the same land?

3 Should the Court make declarations as to the Sheriff's entitlement to recover her reasonable costs in these and related proceedings from the proceeds of sale of that land?

4 These two proceedings, S ECI 2024 00204 Giurina v Sheriff (the Warrants proceeding) and S ECI 2024 04767 Hooks Industries v Giurina, Registrar & Sheriff (the TLA proceeding) related to actions by the Sheriff under warrants of seizure and sale of title to land in Geelong West that was registered in the name of the deceased and held by Mr Giurina as the deceased's executor (the Land).

5 After hearing the trials of both the following proceedings together, on 18 November 2024 I gave a single set of reasons for judgment covering both.[1] Defined terms in those reasons are applied in these reasons.

6 In my reasons for judgment, I said I would hear any applications as to the costs of these proceedings by written submissions, and that costs would be determined on the papers.[2]

7 In an affidavit filed on behalf of the Sheriff prior to trial (Fisken affidavit[3]), a lawyer for the Sheriff deposed that the Sheriff currently held $612,000 in proceeds from the sale of the Land, and he foreshadowed that the Sheriff intended to claim orders against Mr Giurina for various costs, including costs in two other proceedings relating to the execution of the warrants on the Land, from those proceeds. The Fisken affidavit stated that 'there are now three costs orders that have been made in the [Sheriff's] favour in litigation brought by [Mr Giurina], namely the costs order of Justice Forbes on 26 February 2024,[4] the Court of Appeal's costs order on 29 May 2024,[5] and Tsalamandris J's costs order of 3 June 2024'.[6]

8 In the Sheriff's submissions, filed 21 October 2024, the Sheriff sought declaratory orders to the effect that costs incurred by the Sheriff in the Warrants proceeding and other proceedings referred to in the Fisken affidavit all related to Mr Giurina's attempts to prevent the Sheriff from selling the Land, and that they all were recoverable under s 32(1) of the Sheriff Act 2009 (Sheriff Act).

9 In Mr Giurina's submissions before trial, he responded to the Sheriff's application in the following way:

(a) First, after the receipt of the Fisken affidavit, in Mr Giurina's submissions filed 12 October 2024, he contended that the orders relating to costs in other proceedings would not be available. As to the Sheriff's application for declaratory orders relating to s 32 of the Sheriff Act, Mr Giurina submitted that the Court cannot make such a declaration. The basis for this contention was that the Land was not seized under a lawfully executed warrant.

(b) Secondly, following the receipt of the Sheriff's submissions dated 21 October 2024, Mr Giurina made responding submissions in a document dated 11 November 2024. In that document, he added further reasons why he said the declarations could not be made. He submitted that, even if the Court were to find that the Land was sold pursuant to effective warrants, the Sheriff's construction of s 32(1) of the Sheriff Act was 'far too wide'. Mr Giurina submitted that the proper construction of this provision is limited to the costs and expenses incurred in the actual execution of the warrant, meaning the physical act of execution. Mr Giurina gave as an example the case of ANZ v Elias.[7] Mr Giurina also contended that, in any event, s 32 would not cover past costs orders made in the Sheriff's favour against the plaintiff. Mr Giurina contended that the Sheriff had missed the opportunity to seek declarations in relation to those orders made in the past in other proceedings.

10 On 2 December 2024, the Sheriff filed a further affidavit, sworn on that day by another lawyer on her behalf (Sergi affidavit), in support of the Sheriff's application for costs orders and declarations. The Sergi affidavit contained information about the Sheriff's actual costs in four related matters (coming to a total of $171,084.10 including an estimate of the cost incurred in pursuing the costs application itself), estimates of the costs that would be recoverable on taxation in the four matters, and the fixed amount or 'gross sum' sought by the Sheriff for each. In submissions dated 29 November 2024 and filed 2 December 2024, the Sheriff set out the costs order sought in the Warrants proceeding as follows:

The plaintiff pay the defendant's costs of and incidental to the summons filed by the plaintiff on 21 August 2024 and the proceeding from 23 August 2024 on a standard basis, fixed in the sum of $40,000.

11 The submissions set out the declarations sought by the Sheriff as follows:

i. the Sheriff's costs and disbursements incurred in responding to the plaintiff's application for an injunction before Forbes J in SECI 2024 00204, in the sum of $12,000, were reasonable costs and expenses she incurred in executing a warrant within the meaning of s.32(1) of the Sheriff Act 2009.

ii. the Sheriff's costs and disbursements incurred in responding to the plaintiff's application for leave to appeal to the Court of Appeal in proceeding S EAPCI 2024 0031, in the sum of $30,000, were reasonable costs and expenses she incurred in executing a warrant within the meaning of s.32(1) of the Sheriff Act 2009.

iii. the Sheriff's costs and disbursements incurred in responding to the plaintiff's proceeding and application in SECI 2024 02707, in the sum of $13,000 were reasonable costs and expenses she incurred in executing a warrant within the meaning of s.32(1) of the Sheriff Act 2009.

iv. the Sheriff's costs and disbursements incurred in responding to the plaintiff's application on summons filed on 21 August 2024 and the proceeding SECI 2024 00204 from 23 August 2024, in the sum of $40,000, were reasonable costs and expenses she incurred in executing

12 The Sheriff's submissions also drew my attention to another proceeding involving Mr Giurina (the Deak proceeding), as follows:

In seeking orders as to her costs, the Sheriff is mindful of the recent decision Deak v Estate of the Late Carolina Nacinovich and Ermanno Giurina [2024] VSC 710 ... and the potential interaction with the application for costs in this proceeding and in Hooks Industries v Giurina (SECI 2024 04767).

13 In further responding submissions dated 9 December 2024:

(a) Mr Giurina criticised the sum of $171,084.10 as 'exceptionally high', noting 'There is no breakdown of how this figure was derived nor is there any indication of the charge out rate which was applied'.

(b) Mr Giurina repeated his previous submission that s 32(1) of the Sheriff Act only permitted the Sheriff to recover costs incurred 'in the physical act of execution'.

(c) Mr Giurina next submitted that this Court could not quantify costs incurred in other proceedings, and the Sheriff had missed the opportunity to make the current arguments.

(d) Mr Giurina accepted that the Sheriff should receive a costs order in her favour in the Warrants proceeding, and submitted that 'a figure of $35,000-$40,000 to cover both the application for an injunction before Forbes J and the application on summons in this proceeding would be more reasonable ...'.

14 In submissions dated 29 November 2024 and filed 2 December 2024, Hooks Industries submitted that - as the successful party in the TLA proceeding - it should receive its costs on the standard basis, and it further applied for a gross sum costs order fixed in the amount of $45,000 pursuant to r 63.07(2)(c) of the Supreme Court (General Civil Procedure) Rules 2015 (Rules).

15 Hooks Industries stated that it had incurred $60,633.22 in actual costs, summarised in an annexure to its submissions. It submitted that a gross sum costs order of $45,000 would be in accordance with applicable authority concerning the making of such orders.

16 Hooks Industries also submitted that it wished 'to ensure that any costs order made against the first defendant is able to be executed against assets of the Estate of Carolina Nacinovich, including but not necessarily limited to the proceeds of the sale of the Land in the hands of the Sheriff (after those proceeds have been applied in accordance with the Sheriff Act 2009 (Vic))'.

17 In his responding submissions dated 9 December 2024, Mr Giurina submitted that there was 'no need for Hooks to commence this proceeding'; and that, in any event, the quantum of the gross sum costs order sought by Hooks Industries, $45,000, 'must be heavily reduced given' certain features of the case. Mr Giurina submitted that a figure 'in the range of $15,000 to $20,000 is fairer and more reasonable'.

18 As to Hooks Industries' submission that the costs order should be made against Mr Giurina in both his personal capacity and in his capacity as executor of the estate of Carolina Nacinovich, Mr Giurina opposed this. He submitted (references omitted):

... Hooks has not pointed to any power given to the Court to change the capacity of a party to a proceeding once judgment has been delivered and published. If Hooks wanted to change my capacity then it should have sought to amend its originating motion at the start. In the case of Deak a costs order can be made against me in my personal capacity because throughout that proceeding I was a party in my personal capacity.

The Court of Appeal case of MC Wholesaling Pty Ltd ... does not help Hooks. That case involved costs orders against a separate third party entity rather than changing the capacity of an existing party. In that case the order was made against the director of the relevant company (which order is still regarded as exceptional) because he was the "driving force" behind the litigation. Such a factual matter does not apply in the present case.

19 Mr Giurina submitted that (if any orders was to be made) a gross sum costs order in the range of $15,000 to $20,000 should 'be made against me in my capacity as executor of the estate of Carolina Nacinovich'.

The short form bills of costs and final submissions

20 On 16 December 2024, I gave leave to Hooks Industries and the Sheriff to supplement their costs submissions with short form bills of costs and leave to Mr Giurina to reply I did so in the circumstances described in the recitals to those orders, as follows:

A. Hooks Industries (Vic) Pty Ltd (Hooks Industries), as the plaintiff in proceeding S ECI 2024 04767, has filed submissions on the issue of costs pursuant to the invitation to do so in the Court's reasons for judgment handed down on 18 November 2024 [2024] VSC 715 at [107], seeking that the Court make a fixed costs order in respect of its costs in these proceedings.

B. The Sheriff, as the defendant in proceeding S ECI 2024 00204, has filed submissions on the issue of costs pursuant to the invitation to do so in the Court's reasons for judgment handed down on 18 November 2024 [2024] VSC 715 at [107], seeking that the Court make fixed costs orders in respect of her costs in these proceedings, including her costs of the interlocutory application before the Honourable Justice Forbes ....

C. Mr Giurina, as the plaintiff in proceeding S ECI 2024 00204 and the first defendant in proceeding S ECI 2024 04767, has filed submissions disputing the quantification of the fixed costs orders sought by the other parties.

D. The Court is satisfied that in the interests of justice it should grant leave to the Sheriff and Hooks Industries respectively to file a short form bill of costs quantifying their claimed quantification of costs in these proceedings, and does so pursuant to paragraph 1 below.

E. The Court is also satisfied that it should grant leave to Mr Giurina to file any affidavit material and submissions in response to any such short form bills of costs, and does so pursuant to paragraph 2 below.

F. The Court notes that the Sheriff also sought orders fixing costs in respect of costs orders made in two other proceedings, namely proceedings S EAPCI 2024 0031 and S ECI 2024 02707. Paragraphs 1 and 2 below do not extend to the applications for fixed costs orders in those proceedings.

21 Following orders that varied the times for lodging the above documents, the parties responded as follows:

(a) On 31 January 2025, the Sheriff submitted its bill of costs in relation to each proceeding and in relation to costs common to both proceedings.

(b) On 31 January 2025, the Sheriff sent an email to the parties and the Court that relevantly stated that its bill of costs quantified the Sheriff's professional costs and disbursements in relation to the following categories, but that the second category of costs - costs incurred purely in the TLA proceeding - was not sought:

• Professional costs and disbursements related to Proceeding S ECI 2024 00204 only;

• Professional costs and disbursements related to Proceeding S ECI 2024 04767 only; and

• Professional costs and disbursements which are common across Proceeding S ECI 2024 00204 and Proceeding S ECI 2024 04767.

(c) On 31 January 2025, Hooks Industries also filed and served its bill of costs. In addition, Hooks Industries filed a supplementary submission on costs revising its gross sum costs application upward to $50,000, referring to the additional costs it incurred in preparing the short form bill of costs.

(d) On 28 February 2025 Mr Giurina filed submissions responding to the costs submissions and bills of costs of the Sheriff and Hooks Industries. Mr Giurina made submissions that certain costs or categories of costs in the bills of costs were not reasonable or properly substantiated. As to Hooks Industries, Mr Giurina repeated his submission that no costs order could be made against him in his personal capacity, and he also submitted that 'I should not be liable to pay any of the costs of Hooks'.

22 I have already outlined the Sheriff's application and Mr Giurina's response.

23 The Sheriff actively and successfully opposed Mr Giurina's applications before Forbes J and before me in the Warrants proceeding. As the successful party, under the usual practice the Sheriff is entitled to an order for her costs of opposing those applications in the Warrants proceeding on the standard basis. Mr Giurina did not oppose such an order. The Sheriff did not apply for a special costs order, so the standard basis will apply. I will order that Mr Giurina pay the Sheriff's costs of and incidental to the proceeding on the standard basis.

24 The Sheriff did not take an active role in the TLA proceeding and she does not seek an order for recovery of her costs incurred purely in that proceeding.

25 So much for the common ground between the parties.

26 The Sheriff says she is entitled to an order for costs for attendances in common to both the Warrants proceeding and the TLA proceeding. Mr Giurina opposes this, raising an issue between Mr Giurina and the Sheriff as to these 'common costs' of the Sheriff. This issue is of marginal materiality and is in essence subsumed by my conclusion on the gross sum order application for the Sheriff's costs of and incidental to the Warrants proceeding. To the extent it is necessary to resolve this issue, it is addressed under question (b), below.

27 The substantive contested questions for determination raised by the Sheriff's application, and my answers to each, are:

(a) Should I make a gross sum costs order in the Warrants proceeding of $12,000 in respect of the costs of the plaintiff's summons filed 21 August 2024 and heard and determined by Forbes J in February 2024? Yes.

(b) Should I make a gross sum costs order in the Warrants proceeding of $40,000 in respect of the costs of the plaintiff's summons filed 21 August 2024 and the proceeding from 23 August 2024? Yes.

(c) Alternatively to (a) and (b), should I make a single gross sum costs order in the Warrants proceeding in the range of $35,000 to $40,000, as submitted by Mr Giurina? No.

(d) On the proper construction of s 32(1) of the Sheriff Act, are the costs recoverable by the Sheriff from proceeds of sale pursuant to limited to costs incurred in the 'physical' or 'operational' execution of a warrant, to the exclusion of costs incurred in litigation? No, they include the costs incurred by the Sheriff in defending litigation brought to prevent the execution of a warrant.

(e) If litigation costs are recoverable under s 32(1) of the Sheriff Act, should I:

(i) make the declaration sought by the Sheriff that the Sheriff's costs in the Warrants proceeding (fixed as one or more gross sums, depending on the resolution of questions (a)-(c) above) are recoverable under s 32(1) from the proceeds of sale of the Land? Yes.

(ii) make the declaration sought by the Sheriff that the Sheriff's costs and disbursements incurred in responding to Mr Giurina's application for leave to appeal to the Court of Appeal in proceeding S EAPCI 2024 0031, in the sum of $30,000, were reasonable costs and expenses she incurred in executing a warrant within the meaning of s 32(1) of the Sheriff Act? No, I should not exercise my discretion under s 24(1) of the Supreme Court Act to quantify a costs order in another proceeding. Any assessment of those costs should be sought in those proceedings or in applications to the Costs Court.

(iii) make the declaration sought by the Sheriff that the Sheriff's costs and disbursements incurred in responding to Mr Giurina's proceeding and application in SECI 2024 02707, in the sum of $13,000 were reasonable costs and expenses she incurred in executing a warrant within the meaning of s 32(1) of the Sheriff Act? No, I should not exercise my discretion under s 24(1) of the Supreme Court Act to quantify a costs order in another proceeding. Any assessment of those costs should be sought in those proceedings or in applications to the Costs Court.

28 Under the headings that following, I explain each of these answers.

(a) - (c) Two gross sum orders in favour of the Sheriff in the Warrants proceeding totalling $52,000 or one in the range of $35,000 to $40,000?

29 Rule 63.07(2)(c) provides that, where the Court orders that costs be paid to a party, 'the Court may then or thereafter order that as to the whole or any part of the costs specified in the order, instead of taxed costs, that party shall be entitled to - ... a gross sum specified in the order instead of taxed costs'.

30 Having regard to the applicable principles,[8] I am satisfied that I can and should make gross sum costs orders for the Sheriff's costs of and incidental to the Warrants proceeding. It is in the interests of justice and consistent with the overarching purpose of the Civil Procedure Act to do so. I am satisfied that it is necessary and appropriate to do so, to achieve finality without delay and further 'aggravation' and expenditure in disputation about costs. I have been provided with sufficient material for me to be able to quantify such orders appropriately, allowing an appropriate discount for the imprecision involved. As the judicial officer who heard the substantive application for final relief in the Warrants proceeding, I am in a good position to quantify the orders. I also have a short form bill of costs to consider in making my assessment.

31 As it happens, both parties in the Warrants proceeding submit that a gross sum approach is appropriate. The difference in position between the Sheriff and Mr Giurina is that Mr Giurina only accepts that a single order in the range of $35,000-‍$40,000 would be appropriate, whereas the Sheriff seeks two orders totalling $52,000, comprising:

(a) for the Sheriff's costs in successfully opposing Mr Giurina's application by summons filed 20 February 2024 for an interlocutory injunction heard and determined by Justice Forbes in February 2024, a gross sum costs order of $12,000; and

(b) for the Sheriff's costs of the proceeding since Mr Giurina's summons on originating motion filed 21 August 2024, including the hearing before me, a gross sum costs order of $40,000.

32 The evidence before me amply supports the making of the gross sum costs orders the Sheriff seeks, totalling $52,000 for the Warrants proceeding.

33 The 'conservative estimates' of taxable costs given in the Sergi affidavit ($16,500 in respect of the application before Forbes J and $54,400, before me) justify the making of the gross sum costs orders the Sheriff seeks. Further, those estimates are now shown - by the short form bill of costs - to be very conservative. That is, they significantly discount costs in Mr Giurina's favour.

34 The Sheriff's short form bill of costs amply supports the making of the orders sought by the Sheriff. It provides evidence that:

(a) the costs of the Sheriff incurred purely in the Warrants proceeding are over $69,000 ($54,890 in solicitors' costs plus $14,964 in disbursements);

(b) the costs of the Sheriff incurred purely in the TLA proceeding are over $30,000 ($30,740 in solicitors' costs plus $200 in disbursements); and

(c) the costs of the Sheriff incurred in common between the two proceedings are over $68,000 (solicitors' costs of $30,740 plus disbursements of $37,617).

35 As already noted, the Sheriff does not apply for costs in the second category above.

36 Mr Giurina contends that I have no power to order costs relating to the third category, because that would amount to making a costs order in another proceeding (namely, the TLA proceeding), and that it was unnecessary for the Sheriff to be joined in the TLA proceeding.

37 Mr Giurina has made some other criticisms relating to particular categories of items of the bill, which I address below.

38 I do not accept Mr Giurina's submissions that I have no power to order costs relating to the Sheriff's attendances in common between the Warrants proceeding and the TLA proceeding. I am satisfied that I have that power, and that I should exercise it.

39 In my view, where the Sheriff has incurred a cost for an attendance in common between the Warrants proceeding and the TLA proceeding, that cost can properly be regarded as a cost incurred in the Warrants proceeding, for the purposes of making an order indemnifying the Sheriff for her costs of and incidental to the Warrants proceeding. Such costs have a sufficient connection with the Warrants proceeding.

40 I do not accept Mr Giurina's contention that the joinder of the Sheriff in the TLA proceeding was inappropriate or that the TLA proceeding itself was unnecessary. As I explain below in relation to Hooks Industries' application, in my view Hooks Industries was justified in bringing the TLA proceeding. Having instituted that proceeding, it was appropriate that Hooks Industries join the Sheriff as a party, because the efficacy of the relief reasonably sought by Hooks Industries involved the Sheriff being ordered to take certain steps to effectuate transfer of title to Hooks Industries before the six-month deadline in s 52(3) and (5) of the TLA elapsed.

41 In any event, even if I were to ignore the third category of the Sheriff's costs altogether, the total sum sought by the Sheriff's two proposed gross sum costs orders ($52,000) would in any case still represent a discount about $17,000 on the first category of her costs itemised in the Sheriff's bill of costs. Even if the Sheriff were only entitled to costs in the first category, I would be satisfied that, taking a broad brush approach, it would be in the interests of finality and appropriate that I make the gross sum costs orders sought by the Sheriff in the Warrants proceeding.

42 In reaching that conclusion, I have considered various criticisms Mr Giurina made of some items in the Sheriff's bill. He criticised the inclusion and quantum of some of the costs itemised in the bill and also contended that a time-based assessment would be more appropriate for various items than a folio-based approach, given that the Supreme Court scale as amended with effect from 1 January 2024[9] now adopts a general time-based approach. I do not accept Mr Giurina's criticism of the folio-based approach for the items he complains of, as newly amended Annexure A to the Rules states that the new scale is 'in respect of work done on and after 1 January 2025 ...' and the work referred to in the Sheriff's bill of costs was done before then. Further and more broadly, Mr Giurina's criticisms are unpersuasive. Adopting a broad brush approach, in my view the gross sum costs orders sought by the Sheriff in the amounts of $12,000 and $40,000 are appropriate, and moreover represent significant discounts.

43 In the Warrants proceeding I will make gross sum costs orders in favour of the Sheriff of $12,000 for the matter before Forbes J and $40,000 for the balance of the proceeding.

44 I decline to make the alternative gross sum costs order in the Warrants proceeding suggested by Mr Giurina.

(d) On the proper construction of s 32(1) of the Sheriff Act, are the costs recoverable by the Sheriff from proceeds of sale pursuant to limited to costs incurred in the 'physical' or 'operational' execution of a warrant, to the exclusion of costs incurred in litigation?

45 As I already noted, in her substantive submissions before trial, the Sheriff foreshadowed seeking a declaration that all such costs are 'costs and expenses that the Sheriff incurs in executing a warrant that are reasonable' within the meaning of s 32(1) of the Sheriff Act. If this is so, the Sheriff submitted, then all such costs may be recovered directly from the proceeds of the sale of the property.

46 Section 32(1) of the Sheriff Act provides that the Sheriff 'may recover all costs and expenses that the sheriff incurs in executing a warrant that are reasonable'. Section 32(2) provides that 'Costs and expenses referred to in subsection (1) include costs and expenses incurred in engaging an agent to sell property seized under a lawfully executed warrant'. Section 32(3) provides that, 'Despite anything to the contrary in this Act, another Act or at law, costs and expenses referred to in subsection (1) may be recovered by the sheriff before - (a) the proceeds arising from the sale of any property under a lawfully executed warrant are applied to the payment of a payable amount'. As mentioned in my earlier reasons for judgment, a 'payable amount' is defined as the amount specified in a money warrant as being required to be paid by the person named or described in the money warrant.

47 The Sheriff submitted that her reasonable costs of and incidental to the Warrants proceeding were 'costs and expenses' incurred 'in executing a warrant', within the scope of s 32(1). This was contested by Mr Giurina.

48 The principles of statutory interpretation are well established. The statutory interpretation process must begin and end with the text used.[10] Where the words of a provision are clear, unambiguous, and can be intelligibly applied to the subject matter, the provision must be given its ordinary and grammatical meaning - in such cases, Parliament's intention has been expressed 'with unambiguous clarity in the language used'.[11] The text must be interpreted in its context, and context should be considered at first instance, rather than at a later stage when ambiguity might arise.[12] The context includes the purpose Parliament intended to achieve, as discerned from the legislation itself, and relevant extrinsic material.[13] The legislative context includes the statute as a whole, with an assumption that Parliament intends interrelated provisions to operate coherently, giving effect to 'harmonious goals'.[14] To discern legislative intention, it may be instructive to consider the legislative history and antecedents of the provision in question.[15] Legislative history and extrinsic materials cannot displace the meaning of the statutory text.[16]

49 The orders sought by Mr Giurina in the TLA proceeding would have prevented the Sheriff from selling title to the Land and (after sale) would have prevented the Sheriff from facilitating transfer of title to the Land. As I have found in my previous reasons for judgment, the Warrants and the Sheriff Act required the Sheriff to sell the Land and then to facilitate transfer title to the purchaser, Hooks Industries. The Sheriff's resistance to those orders being made were steps she took in execution of the Warrants, provided the text of s 32(1) is to be accorded its ordinary English meaning.

50 In his responding submissions dated 9 December 2024, Mr Giurina said:

s.32 comes within Part 3 of the Sheriff Act which deals with the Sheriff's enforcement functions and powers and all other provisions within Part 3 concern the physical or operational act of execution. This would certainly not cover the past costs orders made in the Sheriff's favour against me as submitted by the Sheriff.

51 Mr Giurina contends that s 32(1) is to be interpreted as only applying to costs the Sheriff incurs in the 'physical or operational act of execution'. He points to extrinsic material for s 32, in the form of the Attorney-General's second reading speech,[17] in support of his interpretation. In the second reading speech, the Attorney-General referred to locksmith and removalist fees, and the costs of conducting an auction. Mr Giurina accepted that in some circumstances legal costs might be costs incurred in execution of a warrant, but they would have to be incurred in performing the 'operative function of execution; in other words the physical act of execution of the warrants'. He relied on ANZ v Elias[18] in this regard. In that case, Mukhtar AsJ noted r 66.15(1) of the Rules, which commenced with the words, 'The Court may make such order as it thinks fit in aid of the enforcement of a warrant of execution ...'. The issue for determination before Mukhtar AsJ was whether sub-r (2) was exhaustive, in providing 'An application for an order under paragraph (1) may be made by the sheriff or other person to whom a warrant of execution is directed'. Mukhtar AsJ concluded that it was not exhaustive, and that a judgment creditor could also apply. In the course of this reasoning, his Honour said 'I think it is enabling the Sheriff, who is not a party to the proceeding but is performing the operative function of execution, to make the application. So understood the rule does not deprive the judgment creditor from applying.'[19]

52 Mr Giurina's reliance on his Honour's reasons in ANZ v Elias is misplaced. Mukhtar AsJ's reasons in no way suggest that the Sheriff's costs of execution of a warrant should be limited to occasions where the Sheriff is seeking an order because of the hindrance of a person in possession of property.

53 In my view, there is no reason in principle why the Sheriff's costs involved in successfully resisting litigation to prevent execution of a warrant should be viewed any differently from the costs the Sheriff might incur in seeking an order in execution of a warrant. In both scenarios the Sheriff incurs those costs in execution of the warrant.

54 The fact that the available extrinsic material does not refer to litigation costs is of no real weight. The Attorney-General was merely giving non-exhaustive examples of some costs that would be covered.

55 There are many other actions the Sheriff may have to take in order to fulfil her duty under s 13 of the Sheriff Act to 'execute and return' a warrant directed to her. These can include the acts of sale of property under s 24 of the Sheriff Act, and (where there has been a sale) facilitating the purchaser's acquisition of the property contemplated by both ss 24 and 25. On my reading of the Sheriff Act as a whole, and the text of s 32 in particular, the Sheriff's reasonable costs of and incidental to failed litigation brought by a person to prevent execution of a warrant, including to prevent sale under a warrant or transfer of title upon such sale, are costs that are recoverable under s 32.

(e)(i) Should I declare that the Sheriff's costs in the Warrants proceeding are recoverable under s 32(1) from the proceeds of sale of the Land?

56 There is clearly a real controversy, and 'no mere hypothetical question', between Mr Giurina and the Sheriff as to whether the Sheriff is entitled to recover the Sheriff's reasonable costs of and incidental to the Warrants proceeding from the proceeds of sale of the Land under s 32 of the Sheriff Act.[20] The making of a declaration would quell that controversy.

57 I am satisfied that the costs quantified in the gross sum costs orders I will make in the Warrants proceeding are costs and expenses that the Sheriff incurred in executing Warrants and that they are reasonable within the meaning and for the purposes of s 32(1) and (3). I will make a declaration to that effect.

(e)(ii) and (iii) Should I make the declarations sought by the Sheriff in two related proceedings?

58 It is likewise evident that there is a real controversy between the Sheriff and Mr Giurina as to whether the Sheriff's reasonable costs in proceeding S EAPCI 2024 0031 in the Court of Appeal and proceeding S ECI 2024 02707 before Tsalamandris J are also recoverable by the Sheriff under s 32(1) and (3) of the Sheriff Act, and that a declaration would be an appropriate means of quelling those controversies. Doing so would promote the overarching purpose in s 7 of the Civil Procedure Act.

59 However, the Sheriff did not seek declarations in those terms. The Sheriff seeks a declaration in each of those proceedings that a particular amount of costs is recoverable under s 32.

60 In his 9 December 2024 submissions, Mr Giurina submitted that the Court cannot make any costs orders in the other proceedings, for the following reasons:

This Court in this proceeding (i.e. S ECI 2024 00204) simply cannot make any costs orders in relation to any other proceeding as it has no evidence of what work was undertaken in those other proceedings and what the other proceedings entailed and therefore has no bases on which to decide on any quantum of costs.

... the proceeding before Tsalamandris J was a different proceeding involving registration of a caveat and nothing to do with the execution of warrants. If the Sheriff wanted to run an argument in that proceeding that her costs come within s. 32(1) of the Sheriff Act that should have been done in that proceeding before Tsalamandris J not now in this proceeding.

In the Court of Appeal proceeding being S EAPCI 2024 0031, the Sheriff has already attempted to obtain a declaration that her costs in that proceeding come within s.32(1) and the Court of Appeal has declined to make that declaration. ... It is not appropriate that the Sheriff be given a "second bite at the cherry" in this proceeding.

Also any specific quantum of costs in relation to the Court of Appeal proceeding should have been sought from the Court of Appeal not now in this proceeding. ...

61 Mr Giurina further submitted that r 67.02(b) and (c) did not empower the Court to make a gross sum costs order in relation to costs incurred in other proceedings. He relied on Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738, 743 and at [22] and Aura Energy Ltd v ASEAN Deep Value Fund (No 2) [2020] VSC 732 at [58], [66]. He also submitted that s 24(1) of the Supreme Court Act 1986 would be an inadequate source of power to make such orders. He submitted that an authority relied on by the Sheriff, MC Wholesaling Pty Ltd v Zheng [2024] VSCA 248, at [90] and [98], was distinguishable.

62 The parties did not draw to my attention any case in which the Court has been asked, in the course of dealing with a costs application in one proceeding, to quantify the reasonable costs recoverable in another Supreme Court proceeding. This is not a scenario contemplated by r 63.09 or any other provision of ord 63, as far as I can see. The process for seeking assessment of costs in a proceeding (including a proceeding in the Court of Appeal) contemplated by ord 63 appears to be by summons in the Costs Court: rr 63.37 and 63.38 of the Rules.

63 Section 24(1) of the Supreme Court Act provides relevantly that 'the costs of and incidental to all matters in the Court ... is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid'.

64 As a matter of purely textual interpretation, s 24(1) leaves open the possibility that the Court may make a costs order in one proceeding that assesses the costs in another. Sitting as the judge hearing the Warrants proceeding, I may well have power under s 24(1) to quantify the costs in proceeding S EAPCI 2024 0031 or proceeding SECI 2024 02707.

65 However, even assuming I have that power, I decline to exercise it here, for the reasons that follow.

66 First, there is no process (such as a summons) bringing either of proceeding S EAPCI 2024 0031 or proceeding SECI 2024 02707 formally before me. Given the breadth of the power conferred by s 24(1), that may not be a determinative consideration. It is arguable that I might be able to dispense with the need for a summons, and I might also be able to dispense any requirements implied by rr 63.37 and 63.38. In deciding whether to give such dispensation I would need to balance the potential departure from the formal processes provided by the Rules with the overarching purpose set out in s 7 of the Civil Procedure Act, including the objective of dealing efficiently with the real issues in dispute, and doing so having regard to the objects in s 9.

67 However, none of the procedural issues were addressed by the Sheriff. If I venture down the path the Sheriff invites me to, ultimately this may generate further disputation and prove more costly and inefficient than adherence to the procedural avenue for assessment of costs contemplated in the Rules.

68 Further, as Mr Giurina pointed out, I am not the judicial officer who made the costs orders in question and there may be matters revealed by the files in those proceedings which would be relevant to a decision on a gross sum order in relation to those costs.

69 The Supreme Court Act establishes the Costs Court, and the Rules suggest that it is the intended avenue for assessment of the quantification of reasonable costs in the proceedings that I did not hear and determine.

(a) I have had regard to the descriptions of the related proceedings in the Sheriff's submissions. Based on those descriptions, it is apparent that the Sheriff's reasonable costs incurred in them were incurred in executing warrants relating to the Land. As such they will fall within s 32 and will be recoverable from the proceeds of sale of the Land.

(b) However, the terms of the declarations sought by the Sheriff require me, in effect, to fix the quantum of reasonable costs incurred by the Sheriff in those proceedings. Because I decline to do so, I will not make the declarations that are sought.

71 I have already outlined Hooks' Industries application and Mr Giurina's response.

72 In summary, Mr Giurina submitted that Hooks Industries had no need to commence the proceeding at all and that in any event the figure it claims should be heavily reduced. He also submitted that the costs order should be expressly directed to Mr Giurina purely in his capacity as executor of the deceased estate.

73 The questions for determination raised by Hooks Industries' application are:

(a) Was Hooks Industries' commencement and continuation of the proceeding unnecessary, disentitling it to the usual order for costs?

(b) If Hooks Industries is entitled to a costs order, should I make a gross sum costs order in the TLA proceeding of $50,000 in favour of Hooks Industries? Or, as Mr Giurina submitted, some lesser sum in the range of $15,000 to $20,000?

(c) Should any such costs order be expressed to apply to Mr Giurina in both his personal capacity and his capacity as an executor?

(a) Was Hooks Industries' commencement and continuation of the proceeding unnecessary, disentitling it to the usual order for costs?

74 Hooks Industries was successful in obtaining relief substantially in the form it sought. That relief included a declaration that it was entitled to be registered proprietor of the Land and an order that required the Sheriff to complete and lodge a transfer with the Registrar of Titles in urgent circumstances, facilitating a transfer of the Land from the Sheriff to Hooks Industries. It also included directions to the Registrar to cancel and create new folios of the Register for the Land to facilitate the transfer to Hooks Industries.

75 This amounted to a comprehensive victory for Hooks Industries in the TLA proceeding. As the successful party, under the usual practice Hooks Industries would receive an order for its costs.

76 However, in his 28 February 2025 submissions, Mr Giurina submitted that Hooks Industry had engaged in conduct that disentitled it from receiving a costs order, in that it 'effectively invited the litigation, that is, where there was no reason for the litigation to have begun'. He submitted (references omitted, emphasis added):

At [10] of its previous submissions on costs dated 29 November 2024 Hooks states that it commenced the proceeding because I failed to make arrangements to provide Hooks with the duplicate certificates of title ("the C/Ts"). As indicated at [60] of the judgment of Gray J I took a very reasonable stance by stating that there would be no arrangement because I was involved in litigation with the Sheriff to have the sale set aside. At no stage did I say that I would never hand over the C/Ts. And in any event once the litigation with the Sheriff was over if the paper C/Ts were lost or could not be located Hooks could have had them cancelled and been issued with electronic ones which is exactly what happened. So there was never any need for it to have commenced this proceeding.

The only litigation which was necessary to determine whether there had been a valid sale of the Property at 120 Elizabeth Street Geelong West ("the Property") was my proceeding against the Sheriff. If the sale had been set aside then Hooks would have been refunded by the Sheriff of any money it had paid and that would have been the end of the matter. If it had been decided that the sale was valid then if the paper C/Ts were lost or could not be found, then, as noted above at [7], Hooks could have had the old paper C/Ts cancelled and new electronic ones issued which is what happened. And as noted at [97] and [101] of the judgment of Gray J in relation to the two proceedings, this Court can direct the Registrar to cancel and create new folios.

This proceeding was only instigated by Hooks where there was no need to do so and I was not responsible for bringing it and I did nothing which necessitated the bringing of this proceeding. Once the Sheriff proceeding had been decided then if necessary new certificates of title could have been created if the paper ones could not be found. It is therefore not fair to me in my capacity as Executor of the Nacinovich Estate to have to pay any of the costs of Hooks as my actions did not necessitate the commencements of this proceeding (i.e. I was not responsible for its commencement).

77 With reference to the underlined sentence in the above passage of Mr Giurina's submissions, paragraph 60 of my reasons for judgment was (references omitted):

Hooks Industries made efforts to locate the duplicate certificates of title issued in 1976 in respect of the two folios of the Register describing the Land, but to no avail. In the course of those efforts, on 25 July 2024, a representative of Hooks Industries spoke with Mr Giurina, who did not explicitly state that he held the certificates, although he said words to the effect that he would not be handing them over as he was still involved in legal proceedings against the Sheriff to annul the sale, as well as a proceeding against the Council. Mr Giurina confirmed this position in an email on 29 July 2024, again without making it clear whether or not he held the certificates:

I currently have a proceeding on foot in the Supreme Court against the Sheriff to have the sale of 4 June 2024 set aside. The substantive matter has not been finally determined.

Consequently there will be no arrangement undertaken in relation to the Certificates of Titles.

In the meantime I also reserve all my rights.

78 I did not indicate in paragraph 60 of my reasons for judgment that Mr Giurina's stance was reasonable.

79 My reasons for judgment, at paragraphs 61-62, go on to refer to further relevant facts, namely the commencement of a proceeding by Hooks Industries against Mr Giurina to obtain production of the previous duplicate certificates of title for the Land, and a further attempt (on 13 September 2024) by a representative of Hooks Industries to obtain information from Mr Giurina about the location of the certificates, to which Mr Giurina did not respond.

80 Mr Giurina's conduct in relation to Hooks Industries' attempts to locate and obtain the certificates was not reasonable. On the contrary, it was Mr Giurina's conduct that precipitated the TLA proceeding. I am satisfied that the proceeding brought by Hooks Industries was necessary, given the conduct of Mr Giurina. When Hooks Industries asked Mr Giurina about the whereabouts of the duplicate paper certificates of title, Mr Giurina did not respond directly. His response did not indicate to Hooks Industries whether or not he held duplicate certificates of title for the property. Given the urgency of the matter, arising from the imminent expiry of the six-month deadline specified in s 52 of the Transfer of Land Act 1958, Hooks Industries acted reasonably in commencing and prosecuting the TLA proceeding.

81 Mr Giurina also submitted that the joinder of the Sheriff as second defendant in the TLA proceeding was unnecessary.

82 I do not accept this submission. I have already addressed this point in the context of the Warrants proceeding, and will address it further, in the context of the TLA proceeding, under the next heading.

(b) If Hooks Industries is entitled to a costs order, should I make a gross sum costs order in the TLA proceeding of $50,000 in favour of Hooks Industries? Or, as Mr Giurina submitted, some lesser sum in the range of $15,000 to $20,000?

83 As I have already noted, in submissions dated 29 November 2024 and filed on 2 December 2024, Hooks Industries applied for a gross sum costs order, stating that its gross costs were $60,633.22, and that it sought a fixed sum costs order in the amount of $45,000. Later, Hooks Industries' bill of costs specified that its costs incurred in the Warrants proceeding totalled $64,791.89 to 19 November 2024, and thereafter a further $9,226.50 were incurred. Hooks Industries revised the amount it is seeking by way of a gross sum costs order to $50,000.

84 I have already referred to r 63.07 of the Rules and the principles applicable to the making of a gross sum costs order under that provision. I am satisfied that circumstances here justify the making of a gross sum costs order in the TLA proceeding, and that it is appropriate to make such an order to avoid aggravation, disputation, delay and expense.

85 Mr Giurina contended that the quantum sought was not properly substantiated because the charge-out rates at which the costs in question have been itemised were not stated. I do not find this submission persuasive, as the totals in question do not seem very high for the work involved.

The addition of the Sheriff in this proceeding has created unnecessary costs. These unnecessary costs can be seen at items 12, 14, 22, 23, 24, 31, 33, 37 and 49 of the short form bill of costs in this proceeding which incorporate some activity in relation to the Sheriff proceeding (such as communication with Mr Ajzensztat and reading documents in the Sheriff proceeding ) which was unnecessary as there was no need for the Sheriff to be involved in this proceeding. I also object to item 46 of the short form bill of costs. As the trial before Gray J only went for about an hour due to my mother being hospital it is not appropriate to charge for a one day appearance.

87 I am not persuaded by Mr Giurina's submission that the amount claimed by Hooks Industries is excessive. The bill of costs establishes that the fixed sum of $50,000 sought by Hooks Industries is appropriate. That would be so even if a discount were to be applied corresponding to a subtraction of much of the value represented by the items Mr Giurina specially criticised - items 12, 14, 22, 23, 24, 31, 33, 37, 46 and 49 of Hooks Industries' short form bill of costs in this proceeding.

88 In any event, with specific reference to the criticism Mr Giurina levelled at items 12, 14, 22, 23, 24, 31, 33, 37, and 49, I consider that the joinder of the Sheriff as a defendant in the TLA proceeding was reasonable and necessary. As already mentioned in the context of the Warrants proceeding, it was appropriate that Hooks Industries join the Sheriff as a party to the TLA proceeding, because the efficacy of the relief reasonably sought by Hooks Industries involved the Sheriff being ordered to take certain steps to effectuate transfer of title to Hooks Industries before the six-month deadline in s 52(3) and (5) of the TLA elapsed.

89 Mr Giurina's objection to item 46 of the short form bill of costs is also unpersuasive and I reject it. He submitted that the trial before me 'only went for about an hour' because of Mr Giurina's personal circumstances. However, the matters were fixed for one day, and it is reasonable that counsel was retained for a full day's hearing. The fact that the hearing ran for substantially less than one day would not have led to Hooks Industries being relieved of its liability to counsel for a full day's hearing, and under the indemnity principle, Mr Giurina should be visited with an order to pay Hooks' Industries' costs for the full day.

90 Further and in any event, it is not appropriate to approach the quantification of a gross sum costs order as if it were a taxation. The $50,000 sought by Hooks Industries represents a substantial discount on the amounts itemised in the bill of costs. The figure represents an appropriate amount, taking a broad brush approach. The discount duly compensates for the lack of precision involved in the gross sum quantification process.

91 I will fix the gross sum costs order in Hooks Industries' favour at $50,000.

(c) Should any such costs order be expressed to apply to Mr Giurina in both his personal capacity and his capacity as an executor?

92 Hooks Industries sought an order that the first defendant, Mr Giurina, pay this sum both in his personal capacity or in the alternative in his capacity as executor of the estate of Carolina Nacinovich.

93 Hooks Industries drew my attention to the judgment of Associate Justice Steffensen given on 18 November 2024 in the Deak proceeding, in which her Honour at [153]-‍[157] stated that the proceeds of sale of the Property are no longer an estate asset and are to be regarded as Mr Giurina's own personal funds.

94 Hooks Industries respectfully disagreed with that characterisation of the proceeds of the sale of the Property, submitting that Mr Giurina's executorial duties will not be complete until a costs order against him in the TLA proceeding is discharged. In order to avoid a scenario in which her Honour's remarks in the Deak proceeding 'might serve to frustrate the plaintiff's ability to execute any costs order against "the only estate asset", the plaintiff seeks that any costs order be made in the terms stated'. That is, Hooks Industries seeks a costs order that against Mr Giurina in both his personal capacity and his capacity as executor.

95 In response, Mr Giurina contended that it was not open to Hooks Industries to invite the Court to 'change the capacity' in which the costs order might be made. He submitted that the TLA proceeding was commenced against Mr Giurina in his capacity as executor, and any costs order must be made in those terms.

96 It is true that the TLA proceeding named Mr Giurina in his capacity as executor. That was appropriate, as the proceeding related to the Land, and the Land remained registered in the name of the deceased and was vested in Mr Giurina (pursuant to s 13 of the Administration and Probate Act 1958) as executor. His conduct precipitating the litigation was conduct in that capacity.

97 In representing a deceased estate for the purposes of its administration, an executor is personally liable for its debts and liabilities.[21] This includes costs incurred in prosecuting or defending litigation. In such a case, the executor may seek judicial advice in advance, and if he complies with it, he is assured that his liability will be properly indemnifiable out of estate assets.[22] But, to the extent that indemnity from estate assets may be unavailable, he will have to meet his personal liability from his own assets.

98 For those reasons, I do not regard it as appropriate to limit Hooks Industries' costs order to Mr Giurina's capacity as executor of the deceased estate. Doing so might cause confusion as to the operation of the costs order, given the issue that is squarely in contention between Hooks Industries and Mr Giurina. Ordinarily, it would be unnecessary to stipulate that such an order against an executor gives rise to a personal liability. But because Mr Giurina is disputing that the costs order should give rise to any personal liability on his part, I think it is appropriate to make it clear on the terms of the order that it will be capable of execution against Mr Giurina both:

(a) in Mr Giurina's capacity as executor of the deceased estate; and

(b) in his personal capacity.

99 As to the first capacity in which the costs order will apply to Mr Giurina, the proceeds of the Sheriff's sale pursuant to the Warrants may (depending on satisfaction of claims that have priority under the Sheriff Act and any other applicable legislation, and the sufficiency of any remaining amount of those proceeds) be applied in satisfaction of Hooks Industries' costs order in the TLA proceeding. As explained in my earlier reasons for judgment, the Land could be seized and sold under the Warrants, and the proceeds of its sale could be used, to meet judgment debts incurred by Mr Giurina while acting as executor of the estate. This reasoning applies equally to the costs order I will make in Hooks Industries' favour here.

100 As to the second capacity, to the extent that the costs order I will make against Mr Giurina might be unmet following distribution of the proceeds of the sale of the Land under the Sheriff Act, Mr Giurina will retain a personal liability to pay those costs. If the proceeds of sale are exhausted by distributions to others, leaving no remaining estate assets, that will simply mean that Mr Giurina can no longer hope to have his personal liability indemnified from estate assets. Hooks Industries will be at liberty to pursue other means of enforcing the costs order, such as executing against any assets of Mr Giurina held in his personal capacity.

101 In conclusion, to the extent that Hooks Industries does not obtain full payment of the costs order from the proceeds of the Sheriff's sale of the Land, Mr Giurina's personal liability to pay the costs order will likely have a substantive role to play. There is no reason for any exercise of discretion to limit Mr Giurina's exposure to personal liability in this case. To do so might leave Hooks Industries out of pocket. It is appropriate that the costs order to be made against Mr Giurina will be without the express limitation to his capacity as executor that he sought. Moreover, to quell the dispute between the parties on this issue, it should expressly state that it applies to Mr Giurina in his personal capacity as well.

102 I thank the parties for drawing my attention to Steffensen AsJ's reasons for judgment in the Deak proceeding. I do not think there is any material inconsistency between what I have said and her Honour's reasons.

103 The plaintiff in the Deak proceeding sought to enforce costs orders that had been made against Mr Giurina on 30 July 2018 in a Supreme Court proceeding, and which had been taxed by the Costs Court on 6 December 2018. A warrant for seizure and sale had been issued in respect of those orders, but the Sheriff had reported that a search of the warrant address failed to locate any seizable goods for Mr Giurina. In those circumstances, the plaintiff sought declarations and orders enabling execution against any proceeds of the Sheriff's sale of the Land that might be distributable to Mr Giurina in his personal capacity as a beneficiary of the deceased estate.

104 Steffensen AsJ formed the view that, once the Land has been sold by the Sheriff, Mr Giurina's administration of the deceased estate will have concluded and any proceeds of that sale that are not distributed by the Sheriff to creditors in accordance with the Sheriff Act and which are distributable to Mr Giurina will be reached by the warrants on which the plaintiffs relied. Steffensen AsJ stated that she would grant declarations that such proceeds are the property of Mr Giurina and as such are affected by the costs orders and the warrant. On that basis, Steffensen AsJ proposed to order that the Sheriff execute the warrant as against the proceeds. Her Honour directed the parties to confer on the form of order to arise from this decision, including on the question of costs.

105 It must be recalled that Mr Giurina was not only the executor but also the beneficiary of a specific bequest of the Land in the deceased's will. Steffensen AsJ's key conclusion was that the proceeds of the sale of the Land payable to Mr Giurina (if any) as beneficiary - after distribution to creditors under the Sheriff Act - will be property of Mr Giurina in his personal capacity. That presupposes that all debts incurred by Mr Giurina in his role as executor of the estate will have been discharged first.

106 In the Warrants proceeding I will make orders and declarations to the effect that:

(a) The plaintiff pay the defendant's costs of and incidental to the summons filed by the plaintiff on 21 August 2024 and the proceeding from 23 August 2024 on the standard basis.

(b) Pursuant to r 63.07(2)(c) of the Rules, the costs referred to in the preceding subparagraph be fixed in the sum of $40,000.

(c) Pursuant to r 63.07(2)(c) of the Rules, the costs referred to in paragraph 3 of the Order of the Honourable Justice Forbes made on 26 February 2024 be fixed in the sum of $12,000.

(d) The above costs are costs and expenses the defendant incurred in executing a warrant that are reasonable within the meaning of s 32(1) of the Sheriff Act 2009 and may be recovered by the defendant pursuant to s 32(3) of the Sheriff Act 2009 from the proceeds arising from the defendant's sale of the Land.

107 Now that the Warrants proceeding has concluded, after my dismissal of Mr Giurina's summons, refusal of the relief sought in his originating motion and the disposition of the costs issues, I will also order that the proceeding is dismissed.

108 In the TLA proceeding, I will make orders and declarations to the effect that:

(a) The first defendant pay the plaintiff's costs of and incidental to the proceeding on the standard basis.

(b) Pursuant to r 63.07(2)(c) of the Rules, the costs to be paid under the preceding subparagraph are fixed in the amount of $50,000.

(c) The first defendant is liable to pay the plaintiff's costs under the preceding orders both in his capacity as executor of the estate of Carolina Nacinovich (deceased) and in his personal capacity.

(d) The plaintiff is entitled to payment in accordance with the preceding subparagraphs from the proceeds of the Sheriff's sale of the Land, subject to any higher ranking claims to those proceeds first being satisfied in accordance with the Sheriff Act 2009 and any other applicable legislation.

(e) Otherwise, no order as to the costs of the proceeding.

[1] [2024] VSC 715.

[3] Affidavit of Marc Campbell Fisken affirmed and filed 3 October 2024.

[4] Forbes J's costs order on 26 February 2024 was made upon her Honour rejecting Mr Giurina's application for an interlocutory injunction in the Warrants proceeding.

[5] The Court of Appeal's costs order on 29 May 2024 was made in proceeding S EAPCI 2024 0031, in which the Court of Appeal (Walker and Orr JJA) dismissed an application for leave to appeal from Forbes J's dismissal of Mr Giurina's application for an interlocutory injunction in the Warrants proceeding.

[6] Tsalamandris J's costs order on 3 June 2024 was made in proceeding S ECI 2024 02707 (Giurina and anor v Registrar of Titles and the Sheriff (Vic)), after an unsuccessful application by Mr Giurina for an order directing the Registrar to register a caveat over the Land and a stay of the sale of the Land.

[7] [2017] VSC 663.

[8] See Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119, 120-124 (von Doussa J); Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738, [21]-[22] (Giles JA); Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3) [2012] VSC 399, [84], [86] (Croft J); Wilson v Bauer Media Pty Ltd (Costs) [2018] VSC 161, [10] (J Dixon J); United Petroleum Australia Pty Ltd v Herbert Smith Freehills (No 2) [2018] VSC 501, [36]-[38] (Elliott J).

[9] Supreme Court (Costs Amendment) Rules 2024, rr 3, 22.

[10] R v A2 [2019] HCA 35; (2019) 269 CLR 507, [32]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, [47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, [39] (Consolidated Media Holdings); Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664, [22]; Treasurer of Victoria v Tabcorp Holdings Ltd [2014] VSCA 143, [99]-[102] (Tabcorp).

[12] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (CIC).

[13] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355, [69] (Project Blue Sky); CIC 408 ; see also Consolidated Media Holdings [39].

[15] Consolidated Media Holdings [39]; Tabcorp [2].

[16] Consolidated Media Holdings [39].

[17] Parliament of Victoria, Hansard, Legislative Assembly, 9 October 2008, 4026.

[18] [2017] VSC 663.

[19] [2017] VSC 663, [13].

[20] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 582.

[21] GE Dal Pont, Law of Succession (3rd ed 2021), [13.40]; Ex parte Garland [1804] EngR 336; (1903) 32 ER 786, 789 (Lord Eldon LC); Re Morgan [1881] UKLawRpCh 154; (1881) 18 Ch D 93, 99 (Fry J).

[22] GE Dal Pont, Law of Succession (3rd ed 2021), [13.36]; Re Beddoe [1892] UKLawRpCh 180; [1893] 1 Ch 547; Re Atkinson (deceased) [1971] VicRp 73; (1971) VR 612, 615 (Gillard J).